The Fair Work Act 2009 (Cth) was amended with effect from 1 January 2025 to criminalise wage theft, which extends to not paying the superannuation guarantee.
As a result, superannuation entitlements for the vast majority of national system employees with have an added layer of protection afforded to them by the new criminal offence. This means that non/under payment of superannuation guarantee contributions will now be covered in both the Fair Work jurisdiction and by report to the ATO for investigation.
Under the new wage theft provisions, an employer commits an offence if:
- they are required to pay an amount to an employee,
- the amount is not a required amount that is covered by an exception, and
- the employer engages in conduct which results in a failure to pay the required amount to the employee in full and on time.
This means that for the vast majority of Australian employers and employees, non-payment of superannuation guarantee contributions may fall under the ambit of the new wage theft provisions of the Fair Work Act, creating a serious risk for employers who fail to pay SG in full and on time.
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